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GOTELL v. GENMAR REAL ESTATE

United States District Court, S.D. California


December 13, 2005.

JOSEPH GOTELL, Plaintiff,
v.
GENMAR REAL ESTATE, PETER MARX, SAN DIEGO HOUSING COMMISSION, et al., Defendants.

The opinion of the court was delivered by: JEFFREY MILLER, District Judge

ORDER DISMISSING PLAINTIFF'S FIFTH AMENDED COMPLAINT WITHOUT PREJUDICE FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii)
Background
Plaintiff, proceeding pro se, submitted a civil rights complaint pursuant to 42 U.S.C. section 1983, arising out of a state court unlawful detainer action. In an order dated February 11, 2005, this Court granted Plaintiff In Forma Pauperis ("IFP") status, and dismissed the complaint for failure to state a claim after conducting the initial screening mandated by 28 U.S.C. section 1915(e)(2)(B)(ii). Plaintiff thereafter filed four amended complaints, each of which were dismissed for continued failure to state a federal claim. Plaintiff filed a fifth amended complaint on October 27, 2005.

Sua Sponte Screening per 28 U.S.C. § 1915(e)(2)

  A complaint filed by any person proceeding IFP pursuant to 28 U.S.C. section 1915(a) is subject to a mandatory and sua sponte review and dismissal by the court to the extent it fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B). As currently pleaded, it appears that Plaintiff's fifth amended complaint is still subject to sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) because it fails to state a claim upon which relief may be granted.

  In the fifth amended complaint, Plaintiff alleges five causes of actions against Defendants for: (1) violation of his rights under the Fourteenth Amendment, which the Court construes as an action pursuant to 42 U.S.C. section 1983; (2) violation of his rights under the Sixth Amendment; (3) violation of his Federal Section 8 Housing contract; (4) violation of his rights under Title VI of the Civil Rights Act of 1964; and (5) conspiracy, perjury, fraud, and extortion of monies.

  A. Section 1983

  Plaintiff's fifth complaint continues to fail to state a claim under 42 U.S.C. section 1983. Section 1983 provides a remedy to individuals who have been deprived of a constitutional or federal statutory right under color of state law. 42 U.S.C. § 1983. In this case, Plaintiff has sued private attorneys, his former landlord Genmar Real Estate, and Legal Aid of San Diego. Plaintiff has not alleged how any of these defendants, as private individuals and entities, has acted under color of state law. Plaintiff has also sued the San Diego Housing Commission but has failed to allege that the San Diego Housing Commission was acting to enforce some policy or decision of the commission or was acting pursuant to some government custom. See Monell v. Dept. of Social Servs., 436 U.S. 658, 690-91 (1978). Accordingly, Plaintiff has failed to state a claim under Section 1983.

  B. Sixth Amendment

  Plaintiff claims that his attorney in his unlawful detainer action rendered ineffective assistance. The Sixth Amendment only guarantees counsel for criminal defendants. There is no right to counsel in a civil case. See Lassiter v. Dept. of Social Servs., 452 U.S. 18, 25 (1981). Therefore, Plaintiff cannot bring a claim under the Sixth Amendment.

  C. Breach of Federal Section 8 Housing Contract

  Plaintiff alleges that his rent was wrongfully increased as the result of racial discrimination and in violation of his Section 8 housing contract. Presumably, Plaintiff is seeking to enforce his rights under 42 U.S.C. § 1437f(o). Plaintiff's claim is a state law breach of contract claim over which this Court does not have jurisdiction. See Rivera v. Phipps Houses Services, 2001 U.S. Dist. LEXIS 8939, *11-13 (S.D.N.Y. June 29, 2001) (noting that there is no recognized private right of action under § 1437f and that regulations provide only for actions by public housing authorities without mentioning tenant-initiated suits).

  D. Title VI of the Civil Rights Act of 1964

  Title VI of the Civil Rights Act prohibits programs and activities that receive federal funding from discriminating against individuals on the basis of race, color, and national origin. 42 U.S.C. § 2000d et seq. (2005). Construing the complaint liberally, Plaintiff's allegation that he is the beneficiary of a Section 8 housing voucher is also an allegation that the San Diego Housing Commission and Genmar Real Estate receive federal funds. Plaintiff has also alleged that he was singled out for an unlawful rent increase because of his race. Therefore, Plaintiff has stated a claim for relief under 42 U.S.C. § 2000d against the San Diego Housing Commission and Genmar Real Estate. The complaint does not state a claim for relief under Title VI of the Civil Rights Act as to the remaining defendants.

  E. Conspiracy, Perjury, Fraud, and Extortion of Monies

  Plaintiff seeks to bring various state law claims against Defendants, none of which state claims upon which relief may be granted. Civil conspiracy is a theory of liability and not a stand-alone cause of action. See Applied Equipment Corp. v. Litton Saudi Arabia Limited, 7 Cal.4th 503, 510-11 (1994). Perjury is a criminal, not civil, offense; therefore, Plaintiff lacks standing to bring the charge. Plaintiff has also failed to plead his claim of fraud against Defendants with particularity as required by Rule 9(b) of the Federal Rules of Civil Procedure. See Fed.R.Civ.Proc. 9(b). Finally, although it is not clear whether Plaintiff is attempting to allege extortion under state or federal law, Plaintiff has not alleged the elements of extortion because he has not alleged that any of Defendants sought to obtain his money by means of a threat.

  F. Relief Sought

  Plaintiff is asking for an injunction to prevent Defendants from selling property or transferring money and for $22 million as punitive damages. Punitive damages are not an available remedy for a violation of 42 U.S.C. § 2000d, Plaintiff's only remaining viable claim. See Barnes v. Gorman, 536 U.S. 181, 187-89 (2002). The injunction sought also bears no relationship to the harm Plaintiff claims to have suffered. Accordingly, Plaintiff's complaint is also dismissed because it does not seek relief that is within the power of this Court to grant.

  Conclusion and Order

  Accordingly, IT IS HEREBY ORDERED that the amended complaint is DISMISSED without prejudice for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). If Plaintiff still wishes to continue to proceed with this matter he must, within thirty (30) days: (1) FILE A SIXTH AMENDED COMPLAINT; AND (2) ATTACH A COPY OF THE INITIAL ORDER GRANTING IFP STATUS.

  IT IS SO ORDERED.

20051213

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